9911796707
TMI Blog1983 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... income 4,000 Total 8,730 Then, on 18th July, 1977, a revised return was filed on a total income of Rs. 13,310 constituted of the following items: . Rs. Property income (SOP) 200 Business income 4,407 Amount surrendered 10,000 Total 14,607 Less: L.I.P 1,294 . 13,313 .or 13,310 It appears that the assessee had omitted by inadvertance to include the amount of agricultural income of Rs. 4,000 which had been disclosed in the original return. The ITO took up the assessment proceedings on the basis of this return in the course of which he found on examining the capital account of the assessee an amount or Rs. 10,000 credited therein, for which the narration read as follows: "21st October 1974 By sale of 339 trees groves situated at villages Karai Hawada Nawada Karaiya" It was explained before him by the assessee that there had been a partition of his HUF property whereupon one grove of 339 trees situated in village Karaiya Nawada had fallen to his share. In support of this contention the report of the Commissioner appointed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to the amount of Rs. 7,000 shown from this source in the original return. The AAC by his order dt. 29th Nov, 1978 set right defect and the total income which was finally assessed was Rs. 27,300. The ITO also initiated penalty proceedings u/s 271(1)(c), 5. In considering whether the assessee was liable to penalty for concealment the ITO addressed himself to the question as to whether the assessee had made a deliberate and conscious default in the original return by not including the aforesaid two amounts of Rs. 10,000 each, or, in other words, as to whether the assessee was guilty of concealment of these two amounts in the original return. What appears to have impressed the ITO was that the revised return in which the cash credits were surrendered was filed on 18th July, 1977. Now, before this was done by the assessee he had been served with a notice u/s 143(2) for appearance on 16th July, 1977. On that date there was no compliance. From these circumstances the ITO inferred that it was only for fear of detection that the revised return was filed, and not that the assessee discovered a mistake or omission innocently made in the original return. As regards the other amount of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wilful neglect on the part of the assessee, and the burden of proving that it was not to lay upon the assessee. Now, on the facts as set out in the forgoing paragraphs we find that the assessee has fully discharged this burden in respect of both the income of cash credits surrendered as well as the amount of Rs. 10,000 claimed to be constituted or realisation from Harilal and for which evidence was tendered but was not found acceptable by the ITO. 9. The departmental representative has cited before us a number of rulings of the Allahabad High Court in support of this case. He relied on the cases Rukmani Bahu vs. Addl. CIT, Lucknow 1978 CTR (All) 469 : (1979) 116 ITR 468 (All) and CIT vs. Gyan Prakash (1979) 8 CTR (All) 197 : (1979) 116 ITR 513 (All). Now, the ration of these two rulings is that in a case where the income returned falls short of 80% of the total income assessed the Explanation to s. 271(1)(c) comes into play it was held that insofar as the Tribunal in these two cases failed to consider the applicability of the failed to consider the applicability of the Explanation its orders were erroneous. The next case on which the departmental representative relived, namely, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income at Rs. 5,640 from non-agricultural sources and Rs. 5,640 from agricultural sources. This return was filed on 30th June, 1976. Thereafter, the assessee filed a revised return on 12th Dec,1978 in which an amount of Rs. 6,000 was disclosed. Then in the course of the assessment proceedings, the assessee agreed to an addition of Rs. 5,000 to be made in the assessment. It is with reference to these two amounts of Rs. 6,000 and Rs. 5,000 respectively that the penalty u/s 271 (1) (c) was imposed by the ITO in the amount or Rs. 3,500 and was sustained by the AAC. 11. Now, as regards the amount of Rs. 6,000 this was credited to the assessee s capital account as realisations from sale of trees. The assessee s case before us in regard to this amount was voluntarily disclosed in the revised return by the assessee, and not because there was any detection of concealment by the ITO or even any process of investigation set into motion by him which could have resulted in any such detection. The assessee owns groves of saleable trees and derives income from their sale. However, since complete books of account or records were not maintained to conclusively prove the sales, the assesssee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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